Can the details of my invention disclosed in the patent application be maintained as a secret?

Often innovators wish to have their innovation protected by a patent, and at the same time are concerned that, publication of their patent application will enable competitors to copy their innovation. A common question posed by innovators is, whether it is possible to protect their innovation by a patent and at the same time restrict details of the information disclosed in their patent application from public access. A simple and straight forward answer to the previous question is, NO, it is not possible to get patent protection and at the same time restrict details of the information disclosed in the patent application from public access.

In order to understand the reason behind why such a provision is not extended to inventors, one will have to look at some of the fundamentals of the patent system.

First of all, the patent system enables a patent owner to stop third party from commercializing his patented technology. In other words, third party should know what technology is patent protected, so that they do not infringe on existing patents. Hence, details of the technology that is protected by patents have to be made public information.

Secondly, the patent system in essence is designed to encourage improvement in science and technology. In order to encourage such improvement, innovators are given an incentive, i.e. patent rights for 20 years, in exchange for disclosure of their technology. By making these disclosures available to the public, the system enables public at large to understand state of the art and bring about further improvements. Therefore, the fundamentals of the patent system do not permit grant of patent rights while preventing public access to details disclosed in the patent.

Having said that, some countries, such as US, will withhold publication of the patent application, subject to certain conditions, only till a patent is granted. However, once a patent is granted, the granted patent will be eventually published.

In India however, the patent application will be published after 18 months from the filing date (priority date) of the patent application. In case the patent applicant does not wish to have the patent application published, then the only option is to withdraw the patent application. The withdrawal of the patent application has to happen 3 months before the date the publication of patent application is supposed to happen. In case of withdrawal, the patent application will not be available for public access, and at the same time, the applicant looses the opportunity of a potential patent grant corresponding to the withdrawn patent application. In certain scenarios, such as change in the business environment, applicants explore the above option.

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